Abstract

Excerpted From: Rebecca Johnson, Legal Reimaginations - Notes from the North on Engaging with Indigenous Legal Orders, 35 Yale Journal of Law & the Humanities 378 (2024) (73 Footnotes) (Full Document Requested)

James Boyd White's The Legal Imagination sits within reaching distance on my bookshelf. It is the original 1973 yellow hardcover version. The spine is a bit ripped, the binding loose in places, there are scribbles in the margins, and post-it notes are liberally scattered throughout the book. Some pages (oh, the horror!) even bear witness to an inappropriately close encounter with a coffee cup. It has the look of a book that has spent time in the hands of a student. And that is exactly what it is.

That book became my companion back in 1994, sitting in a full lecture hall in Ann Arbour. I was a Canadian, stepping over the border for the first time, thinking that there were things I might learn about my own legal system by spending some time in another one. Just fresh out of a year as a law clerk at the Supreme Court of Canada, I was starting my LLM with a mind spinning (perhaps a bit chaotically) with questions about identity, equality, justice, legal process, and institutional structures. I was trying to make sense of the place of “choice” or “responsibility” in both law's promise, and law's failures. Like generations of students before me, I was trying to understand how the law might be better brought to bear in resolving challenging struggles over the conduct of life.

And I was right to think that there were important things to be learned by stepping into another legal order, particularly one that, in some ways, seems quite similar. Both Canada and the US share a language, began as settler colonies of England, are largely rooted in the English common law tradition, and have had closely tied economies. And yet, there are of course differences, differences that were sometimes related to substantive law, but other times related to differences in history, culture, and experience. I began to appreciate differences in thought that were not always so visible in legal texts alone; I was conscious of how much was learned through living inside the legal order, through becoming attuned to how not only the case law, and Faculty, but also fellow students, and citizens discussed, engaged with, and lived law.

Every course that I took was a gift, and each gave me space to think about substantive law, comparative law, legal theory, and law in context. The things I learned in each of those classrooms have been carried forward in different ways. But I don't generally find myself returning to the class materials themselves. It has, after all, been 30 years, and the law continues to move.

But the yellow book? A different story. No dust has gathered on the spine. The book has not been assigned reading for one of my classes, and yet, my copy of The Legal Imagination is frequently picked up, referred to, put into the hands of students. The book remains significantly relevant and alive, both in my practice of teaching and learning and in the pathways it offers for engaging with important ongoing efforts in my home country to re-imagine and re-build very different relationships between Canadian and Indigenous Legal Orders. In what follows, I reflect on lines of connection between what Jim White offers us in The Legal Imagination, and some current efforts in Canada to change how educators, judges, and lawyers imagine and act on our responsibilities in a world of deep legal pluralism. In particular, I consider how the book asks us to think deeply about three things: the materials of law, the questions we ask, and the importance of acting together.

(. . .)

As I approach the end of these reflections, I find myself thinking of Donna Haraway, with her reminders of the imaginaries needed for the work of building kin in these times. She points to Anna Tsing, who speaks to the arts of living on a damaged planet. This requires, she says, that we learn to “stitch together improbable collaborations without worrying overmuch about conventional ontological kinds.” Such work may involve mistakes, and so we must practice generous suspicion. But she invites us to be creatively active in “a pilot project, a model, a work and play objects, for composing collective projects, not just in the imagination but also in actual story writing. And on and under the ground.”

While Haraway is speaking to spaces of imaginary in the context of collaborative writing projects, I feel echoes to the ongoing work of law in these times. Reading her words, thinking about acts of imagination, I find myself returning to those moments of inspiration that grabbed me back in 1994, sitting in that classroom in Michigan, the yellow book in front of me. In the introduction to anniversary edition of the book Jim White opined that “this book may be of wider relevance now than when it was first published, for its central concern is with integrity - integrity of the law, of language, of the individual person - at a time when integrity itself sometimes seems to be threatened as a value.”

Grappling with the integrity of law is perhaps the work of every generation. I do not need convincing that this book remains relevant. I see reminders of its relevance in the work of legal imagination that I see going on all around me. On February 9, 2024, as I was finishing this article, the Supreme Court of Canada released its decision in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5. In this much awaited decision, in a conflict between Canada and Quebec, the Supreme Court upheld the constitutionality of a federal statute affirming Indigenous peoples' right of self-government with respect to child and family services. In its discussion of the limits of federal law-making power, the Court spoke explicitly about the ways that legislation can play a pedagogical function, serving to shift the Canadian legal imaginary.

[. . .]

“In a pedagogical spirit, Parliament has used the Act to communicate to the courts and society its position that the law must recognize the importance of Indigenous self-government in relation to child and family services. Thus, the ““unusual” use of affirmations of the right of self-government can be explained in part by the fact that Parliament is attempting to persuade other institutions to adopt the position it has now embraced. In areas where Parliament cannot order, direct or command institutions to adopt its position, this pedagogical function may nevertheless, in time, help to inculcate new attitudes or approaches that will further promote a culture of respect for and reconciliation with Indigenous peoples in Canada.” [at para 81]

What is interesting for the purposes of this chapter, is that, in its discussion of the nature of law, the Court cited James Boyd White. The Court acknowledges the importance of this understanding of the rich possibilities of law, of the richness of our capacity to work with it in ways that enable new solutions, that let us draw different materials and different questions together in the processes of collaborating in new ways on not only outcomes, but also on the processes of building new worlds.

In some ways, this work of stitching together seems an example of what Donna Haraway might refer to as improbable collaborations. It may still seem improbable to imagine the Canadian state or legal order engaging with Indigenous legal orders in ways that are not jurispathic (given the history of law's deployment in precisely such ways). And yet, as the discussion above suggests, there are good reasons to be hopeful, and to imagine that these intersocietal spaces might be collaboratively developed in ways that nourish the ability of law to help us live together well. The work is not easy. But as my colleague Val Napoleon often says, “the hard work of law is never done.” It is this same hard work, this same imaginary that Jim White invited us into, 50 years ago, turning to texts both fictional and real, to think about models of the past and their application to present and futures, and we continue to engage in the work of law. The world continues to offer us many examples of people working at the margins in the now to create different ways of living law. It asks us to continue to consider the materials of law, the questions we ask, and to return to the process of acting together. The Legal Imagination retains its place on my bookshelf, its place in my heart.

Professor, University of Victoria; Associate Director, Indigenous Law Research Unit